Lessons from l’affaire Chemerinsky
A few days ago, a dinner hosted by Erwin Chemerinsky, Dean of the Berkeley Law School, was interrupted by an anti-Israel protester. The event serves as a valuable teachable moment.
On Tuesday, April 9, Erwin Chemerinsky, the preternaturally mild-mannered and well-mannered Dean of the U.C. Berkeley Law School, and his wife, U.C. Berkeley law professor Catherine Fisk, hosted a dinner at their home for 60 graduating law school students. Prior to the event, a group called Berkeley Law Students for Justice in Palestine (LSJP) put up posters calling on students to boycott the dinner. The illustration on the poster (a drawing of Chemerinsky holding a bloody knife and fork with an evil grin on his face) was unquestionably antisemitic, as was the focus on Chemerinsky himself. As Dean, Chemerinsky has defended all students’ first amendment rights, has taken no public position on the war in Gaza, and has no influence over the investment policies of the university as a whole (the student protest focused on a “demand” that the Law School divest its nonexistent investment in Israel). The ONLY possible reason for the LSJP group to target Chemerinsky specifically is because he is Jewish.
At one point during the dinner, a student stood up, walked to a set of steps, took out a portable microphone and amplifier that she had smuggled in, and proceeded to launch into a speech expressing her views about Israel and the war in Gaza. Chemerinsky and Fisk repeatedly, and quite politely (especially at first), asked the student to stop, and then to leave. Ultimately, there was a very minor scuffle between the student and Fisk as Fisk attempted to take the microphone from the student’s hands.
Most of the discussions of the event since it occurred have focused on considerations of the offending student’s first amendment rights (Pro tip # 1– because the dinner was taking place on the lawn at Chemerinsky’s and Fisk’s private home, the student had no first amendment right to speak after being told by her hosts to stop and to leave) and the question of whether Dr. Fisk assaulted the student when Fisk grabbed the microphone and put her arm on the student’s shoulder (Pro tip # 2 – Fisk did not engage in illegal assault, because home owners have the right to engage in minor physical contact like that when a guest has not acceded to their wishes to stop doing something offensive and/or to leave).
Predictably, the way in which LSJP and the specific student (Ms. Afaneh) have since characterized what happened has been – beyond over-the-top to the point of being farcical. As noted in an article in The Chronicle of Higher Education:
““Last night,” Law Students for Justice in Palestine wrote on Instagram, “Professor Catherine Fisk physically assaulted a Palestinian Law Student activist. ... This attack on a Palestinian Muslim law student is only the latest attack on Palestinian, Muslim, and pro-Palestinian students at the University of California, Berkeley.”
In a video posted to TikTok after the confrontation, Afaneh expatiated on what she characterized as Fisk’s assault. “She put her arms around me, grasped at my hijab, grabbed at my breasts inappropriately ... and threatened to call the cops on a gathering of Black and brown students.” In Afaneh’s view, Fisk “assaulted me because to her, a hijabi wearing, keffiyah repping Palestinian Muslim student that felt comfortable to speak in Arabic was enough of a threat to her that I was justified to be assaulted.”
“It was the classic thing that Palestinian lives are constructed to be seen as allowed to be harmed, to be killed, and to be slaughtered, while white ones are allowed to live. Professor Fisk embodied the Islamophobia, the deep anti-Arab racism, and the deep anti-Palestinian sentiment, that these Zionist administrations are built on.”“
Yes, you read that correctly. The actions of Catherine Fisk (a woman in her 70’s) grabbing at the student’s microphone are characterized as reflecting “that Palestinian lives are constructed to be seen as allowed to be harmed, to be killed, and to be slaughtered, while white ones are allowed to live”. My appraisal: I think the student has a pathological need to characterize herself as a victim, and has engaged in a cynical gross misrepresentation of what happened in order to serve her personal ends. But I digress.
The real purpose of this posting is to highlight what I think are the two most important lessons of the event, and they have nothing to do with reflections on the first amendment or what constitutes an assault. But first, a trigger warning for those who have a warm place in their heart for soft-spoken, highly accomplished, Jewish law professors (which, I assume, is most of us): this posting is not particularly complimentary toward Chemerinsky and Fisk (although I’m sure they are not only highly accomplished, but also probably delightful and fascinating people to spend a social evening with).
Lesson 1. Chemerinsky’s and Fisk’s views on Israel, the war, Netanyahu, or anything else, are not relevant to the question of whether the student behaved inappropriately – and they would be well-advised to keep their political views completely separate from any discussion of the evening’s events.
In an interview with Chemerinsky by Jake Tapper on CNN two days after the dinner, Tapper asked Chemerinsky about his views on the war. What Chemerinsky SHOULD have said was “My opinions about the war have NOTHING to do with whether or not the student had the right to interrupt the dinner at my home. Next question.”. That is not, however, what he said. Instead, Chemerinsky replied that he is not a supporter of Netanyahu – suggesting that he thinks his views about Netanyahu are somehow relevant to a discussion of the events at his home. They are not.
More concerning that Chemerinsky’s comments to Tapper is something that Fisk said to the protesting student. There are reliable reports that while Fisk was interacting with the protesting student, Fisk mentioned to the student that she (Fisk) supports the student’s position on the Gaza war. Specifically, she is reported as having said “We agree with you about what’s going on in Palestine.”
Why on earth would Fisk have said that? Three possible reasons come to mind:
(i) Fisk may care deeply that others (including, and perhaps especially, the protesting student) understand that Fisk holds very liberal views about Israel and about the war. Obviously, I don’t know if this was Fisk’s primary motivation, but if it is, the fact that she felt compelled to mention that in the context of a student disrupting a dinner at Fisk’s home (a student who was head of the group that plastered the antisemitic Chemerinsky posters around campus) is distressing. The members of the LSJP (and members of similar campus organizations) don’t ever try to make themselves look good or particularly moral by proclaiming their sympathy for Israeli civilians and sympathy for the Israelis taken hostage by Hamas. Why do so many liberal Jews, like Chemerinsky and Fisk, feel the need to reflexively express support for those who hate them?
(ii) Perhaps Fisk is basically afraid of the student and what the student and the student’s organization might do in the future, and was hoping that by expressing common cause with the student, the student might be less motivated to direct future actions toward Fisk or Chemerinsky. If that was Fisk’s motivation, she is delusional. The student simply doesn’t care about Fisk’s or Chemerinsky’s views, and if Fisk or Chemerinsky think their progressive political views will protect them from being a future target of antisemitic attacks, they are in serious need of a reality check.
(iii) A third possibility is that Fisk (and one gets the sense that this is also true of Chemerinsky) may feel that the student’s behavior was particularly inappropriate precisely because she and her husband hold such progressive views about Israel.
If Chemerinsky and Fisk believe that their views are somehow relevant to judging the appropriateness of the students’ actions, that is a belief that is actually quite offensive. What if they were religiously orthodox Jews who do not support the creation of a Palestinian state? Would that have made the student’s actions acceptable? If this explanation for Fisk’s comment is correct (and I suspect that, at least to some degree, it is), then essentially what Fisk was doing in making the statement was making a plea that people like her and her husband should not be subjected to such atrocious antisemitic attacks, whereas more conservative Jews are more deserving of being the target of the students’ protests. If they were Netanyahu supporters, if they didn’t support a two-state solution, then sure – THEN it would be understandable and perhaps even forgivable that members of the LSJP would attack them. But they are NOT those kinds of people. They SUPPORT creation of a Palestinian state (albeit one that would exist next to, rather than in place of, Israel, which is not what Hamas wants), and therefore the antisemitic targeting of THEM is simply wrong.
Of course, it doesn’t matter to the LSJP students what Chemerinsky and Fisk believe about the government of Israel and about the war. The LSJP students hate them solely because they are Jewish, and Chemerinsky’s and Fisk’s political views have nothing to do with it – just as the Hamas monsters who massacred innocents on Oct. 7 didn’t care about the politics of those they butchered. My strong suspicion is that Chemerinsky is having a hard time accepting this reality, in part because he does seem to be a very caring person and to have a remarkably positive view of human nature. Indeed, even in the face of his experience with the LSJP students, he has tried to focus on the evident fact that MOST of the students in the law school did not actively participate in the protest. But at the same time, it seems well past time for Chemerinsky and Fisk to wake up to what is another evident truth: that a significant minority of their students support a death cult that has as one of its stated goals the elimination of Israel and the killing of all Jews.
There is a more general form in which lesson 1 can be phrased, since the lesson does apply much more broadly than simply to this specific event.
Lesson 1 (General): When expressing support for Israel and/or when criticizing the actions of Palestinian terrorists and/or when commenting on antisemitic statements or actions, it is not necessary to couch those comments in the context of an expression of support for a two-state solution or criticism of Netanyahu.
I understand why so many liberal Jews seem compelled to do this. But please – just stop.
Lesson 2. Universities should enforce their rules. In this case, that would mean charging the student protester with a serious violation of the U.C. Berkeley student code of conduct.
The unwillingness of universities to charge students who have violated codes of conduct when protesting has been a particularly salient feature of the way in which most universities have responded to the post-Oct. 7 protests. In almost all cases, of course, the students who have violated university regulations have been those who have been engaging in anti-Israel, pro-Hamas protests, and as they have learned that they can violate policies with impunity, the protests have grown more extreme.
In the present case, there is no question that the student who stood up during the dinner at Chemerinsky’s and Fisk’s home violated Berkeley’s student code of conduct rules. Carol Christ, Chancellor of U.C. Berkely wrote in a statement that “I am appalled and deeply disturbed by what occurred at Dean Chemerinsky’s home last night. While our support for Free Speech is unwavering, we cannot condone using a social occasion at a person’s private residence as a platform for protest.” And yet – the student has not been charged with any violation of the U.C. student code of conduct. Indeed, it is not clear whether Chemerinsky himself thinks she should be. Rather, he has instead stated that if any students engage in similar behaviors at FUTURE dinners, he will report THOSE students for violating university policy.
But of course, if students who engage in the SAME behaviors in the future are in violation of the student code of conduct, then the student who engaged in those behaviors this past Tuesday was also violating the policy! It appears that Chemerinsky is loathe to charge a student with violating the code of conduct policy, perhaps because he does not like to think of himself as THAT kind of professor. Instead, he’s the kind of professor who is supportive of students, particularly those from marginalized groups (he has, for example, a record as a STRONG supporter of affirmative action in admissions and hiring).
My guess is that even if something similar did happen at a future dinner, Chemerinsky would find some way to rationalize not charging the student(s). But I might be wrong. What I am NOT wrong about is that it is clear that students, like all other humans, respond to incentive structures, and if students perceive that there will be no costs to violating university regulations, then they will continue to break the rules.
Chemerinsky clearly feels that law students at Berkeley need a clear warning after violating a policy once before charging them when they violate the same policy in the same way a second time. I disagree. And so does lawyer David Lat, who has made the argument against the need for a special and specific “warning” in a posting on his widely read Original Jurisdiction blog. Because I agree so completely with what he has written, and because he has spoken about the issue with Chemerinsky, I will simply quote from Lat’s posting:
“At Berkeley Law, Dean Chemerinsky declared that for any such events in the future, “any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.” But what about Malak Afaneh [the student head of the Berkeley LSJP] and the other students who have already engaged in disruption?
I emailed Dean Chemerinsky, expressed my sympathy and support for him and Professor Fisk, and asked whether the students who disrupted his dinner might be disciplined. He wrote back, “I do not know whether discipline will be sought against the student who did this.”
I then suggested to him that he should bring disciplinary proceedings against the students; since it was his home and hospitality that were so egregiously violated, he and Professor Fisk most definitely have standing. He responded that they don’t yet know whether they will pursue discipline themselves ...
Perhaps one could argue that Afaneh and her fellow protesters weren’t on notice that their actions would trigger discipline. I don’t find this persuasive, since disrupting a university event and remaining on private property after being asked to leave—i.e., trespass—obviously violate UC Berkeley rules and local laws.
Student protesters who violate university rules or local laws like trespass or assault statutes should accept their punishments willingly, without complaint. I spoke not long ago with one law school dean whose institution hasn’t suffered any Stanford- or Berkeley-style disruptions. I asked why. The dean gave a number of reasons, and one is that the administration has made clear to the students that any disruptions of university events will be met with university discipline.”
I literally couldn’t have said it better (or even nearly as well) myself.